BCR Questions

Tuesday, January 18, 2011

Protection from incapacity within the judiciary

One of my information sources is ProPublica an independent, non-profit newsroom that produces investigative journalism in the public interest. Following my article that questioned the suitability of a particular judge of the British Columbia Supreme Court, ProPublica published a report on judge suitability in the USA, focused on age related dementia. I would add dementia is not simply a disease of old age. We also need procedures to recognize and deal with early onset dementia.

Sometimes, when judges stay on the bench longer than they should, no one questions their fitness. And most courts have no systemic way to deal with judges with age-related cognitive problems. "We are the worst fraternity in the world about this,” said Judge Boyce Martin, chief judge of the Cincinnati-based 6th Circuit Court of Appeals from 1996 to 2003. . .

The judiciary does not assess the competence of its senior judges. The courts have no formal policy requiring, or even recommending, that judges receive medical checkups or consult with geriatricians. Instead, the institution relies on other judges to monitor colleagues, and, working discreetly behind the scenes, to push out enfeebled judges gently. . .

Why do judges outstay their welcome? Longer life spans and attachment to the job play a role. Another factor, judges and experts say, is that in some ways the job has gotten easier [with better support staff and services].

. . . formal remedies have little effect. The last impeachment for mental incapacity was in 1803. Judges also can be stripped of their dockets if a committee of their peers votes to issue a certificate of disability. That has happened just twice in the last 20 years. Fewer than 1 percent of the 5,277 complaints from litigants and lawyers against judges, filed from 2000 to 2005, involved allegations of mental disability. Generally protective of the bench and fearful of a backlash, lawyers rarely complain.

In Canada, we too should be aware that fellow members of the legal profession are unlikely to sound alarms when they suspect incapacity of judges through health issues or substance abuse. Therefore, the public needs assurance that judges are subject to a regular health review process. If they are not, they should be.

I am sending a copy of this article to the attention of the Chief Justice of the British Columbia Appeal Court, Lance S.G. Finch. I will ask for a description of measures in place to protect the public against mental or physical incapacity within the judiciary.

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